WILSON ET AL., APPELLEES, v. DURRANI ET AL., APPELLANTS.
No. 2019-1560
Supreme Court of Ohio
December 23, 2020
Slip Opinion No. 2020-Ohio-6827
FRENCH, J.
Submitted August 5, 2020. APPEAL from the Court of Appeals for Hamilton County, Nos. C180194 and C180196, 2019-Ohio-3880.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Wilson v. Durrani, Slip Opinion No. 2020-Ohio-6827.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-6827
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Wilson v. Durrani, Slip Opinion No. 2020-Ohio-6827.]
Statutes of limitations—Statutes of repose—Saving statutes—Plaintiff may not use the saving statute to refile a medical claim after the statute of limitations has expired if the statute of repose has expired—Judgment reversed.
{¶ 1} This appeal asks whether a plaintiff may take advantage of Ohio’s saving statute to refile a medical claim after the applicable one-year statute of limitations has expired if the four-year statute of repose for medical claims has also expired. We apply the plain and unambiguous language of the statute of repose and answer that question in the negative.
Facts and procedural background
{¶ 2} Appellees, Robert Wilson and Mike and Amber Sand, filed complaints against appellants, Abubakar Atiq Durrani, M.D.; his clinic, Center for Advanced Spine Technologies, Inc.; West Chester Hospital, L.L.C.; and UC Health, in the Hamilton County Court of Common Pleas
{¶ 3} Both the Wilson complaint and the Sands complaint acknowledge that appellees had previously filed their claims against appellants in prior actions that were dismissed without prejudice, pursuant to
{¶ 4} Appellants moved for judgment on the pleadings in both refiled cases, arguing that Ohio’s medical statute of repose,
{¶ 5} Appellees appealed to the First District Court of Appeals, where they argued that the trial court erred by entering judgment on the pleadings in favor of appellants, because the Ohio saving statute afforded them one year after the voluntary dismissals of their claims in Butler County in which to refile their claims, notwithstanding the expiration of the statute of repose. The First District reversed the trial court’s judgment. 2019-Ohio-3880, 145 N.E.3d 1071, ¶ 31-32, 34. It held that appellees had timely refiled their claims pursuant to the saving statute and that the statute of repose did not bar their refiled claims. Id. at ¶ 32.
{¶ 6} This court accepted appellants’ discretionary appeal to address whether the saving statute permits the refiling of actions beyond the expiration of the medical statute of repose. See 157 Ohio St.3d 1562, 2020-Ohio-313, 138 N.E.3d 1152.
Analysis
Statutes of limitations, statutes of repose, and saving statutes
{¶ 7} The question presented in this appeal requires us to consider the interplay between three distinct types of statutes: (1) statutes of limitations, (2) statutes of repose, and (3) saving statutes.
{¶ 8} Statutes of limitations and statutes of repose share a common goal of limiting the time during which a putative wrongdoer must be prepared to defend a claim, but they operate differently and have distinct applications. Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 11, citing CTS Corp. v. Waldburger, 573 U.S. 1, 7, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014).
{¶ 9} A statute of limitations establishes “a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).” Black‘s Law Dictionary 1707 (11th Ed.2019). A statute of limitations operates on the remedy, not on the existence of the cause of action itself. Mominee v. Scherbarth, 28 Ohio St.3d 270, 270, 290, 503 N.E.2d 717, fn. 17 (Douglas, J., concurring). A statute of repose, on the other hand, bars “any suit that is brought after a specified time since the defendant acted * * * even if this period
{¶ 10} Statutes of limitations and statutes of repose target different actors. Id. at 8. Statutes of limitations emphasize plaintiffs’ duty to diligently prosecute known claims. Id., citing Black’s Law Dictionary 1546 (9th Ed.2009). Statutes of repose, on the other hand, emphasize defendants’ entitlement to be free from liability after a legislatively determined time. Id. at 9. In light of those differences, statutory schemes commonly pair a shorter statute of limitations with a longer statute of repose. California Pub. Emps.’ Retirement Sys. v. ANZ Securities, Inc., ___ U.S.____, 137 S.Ct. 2042, 2049, 198 L.Ed.2d 584 (2017). When the discovery rule—that is, the rule that the statute of limitations runs from the discovery of injury—governs the running of a statute of limitations, the “discovery rule gives leeway to a plaintiff who has not yet learned of a violation, while the rule of repose protects the defendant from an interminable threat of liability.” Id. at __, 137 S.Ct. at 2050.
{¶ 11} In contrast to statutes of limitations and statutes of repose, both of which limit the time in which a plaintiff may file an action, saving statutes extend that time. Saving statutes are remedial and are intended to provide a litigant an adjudication on the merits. Wasyk v. Trent, 174 Ohio St. 525, 528, 191 N.E.2d 58 (1963). Generally, a saving statute will provide that “where an action timely begun fails in some manner described in the statute, other than on the merits, another action may be brought within a stated period from such failure.” Annotation, 6 A.L.R.3d 1043 (1966). It acts as an exception to the general bar of the statute of limitations. Chadwick v. Barba Lou, Inc., 69 Ohio St.2d 222, 232, 431 N.E.2d 660 (1982) (Krupansky, J., concurring in part and dissenting in part).
{¶ 12} We now turn to the specific statutes applicable here.
The applicable statutes: R.C. 2305.113(A), 2305.113(C), and 2305.19
{¶ 13} The court of appeals held—and no party disputes—that appellees’ claims constitute “medical claims” as defined in
{¶ 14}
{¶ 15}
Except as to persons within the age of minority or of unsound mind as provided by section 2305.16 of the Revised Code, and except as provided in division (D) of this section, both of the following apply: (1) No action upon a medical * * * claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim.
(2) If an action upon a medical * * * claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical * * *claim, then, any action upon that claim is barred.
{¶ 16}
{¶ 17} Finally, the relevant saving statute is
In any action that is commenced or attempted to be commenced, * * * if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of * * * the plaintiff’s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.
{¶ 18}
Unless the saving statute applies as an exception to the statute of repose, appellees’ refiled claims are time-barred
{¶ 19} As applicable here,
{¶ 20} Appellees initially filed complaints in Butler County within four years of appellants’ alleged acts or omissions, but they voluntarily dismissed those complaints without prejudice. A dismissal without prejudice “gives to the complaining party the right to state a new case, if he can. But it takes away no right of defense to such suit save that which might be based on the bar of the first action.” DeVille Photography, Inc. v. Bowers, 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959). “A dismissal without prejudice leaves the parties as if no action had been brought at all.” Id. When a complaint has been dismissed
{¶ 21} In Antoon, we rejected an argument that the initial filing of a medical claim commences suit and indefinitely suspends the running of the statute of repose, regardless of a subsequent dismissal without prejudice. Id. at ¶ 24. There, the plaintiffs had originally filed medical-malpractice claims within the repose period, but they had voluntarily dismissed those claims without prejudice. We held that their action on their malpractice claims commenced, for purposes of the statute of repose, only when they refiled their claims, after the four-year repose period had expired. Id.
{¶ 22} The only notable, relevant difference between this appeal and Antoon is that plaintiffs here refiled their claims by commencing new actions—purportedly pursuant to the saving statute—within one year of their voluntary dismissals without prejudice. Unless
R.C. 2305.19(A) does not create an exception to the statute of repose
{¶ 23} Appellees contend that, having voluntarily dismissed their claims in Butler County pursuant to
{¶ 24} This court acknowledged but declined to decide in Antoon whether the saving statute, if properly invoked, may allow the refiling of an action beyond the expiration of the statute of repose. 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, at ¶ 30. To answer that question now, we first turn to the language of
{¶ 25} We have already rejected the argument that commencement of a medical claim within the four-year repose period satisfies the statute of repose once and for all, irrespective of a later voluntary dismissal. See Antoon, at ¶ 24 (“We reject the Antoons’ assertion that filing then dismissing a claim will indefinitely suspend the statute of repose by ‘commencing’ the suit on the date of the first filing”). But appellees also argue that by refiling their claims within one year of the voluntary dismissal of their Butler County claims, the new actions relate back to the dates they initially filed their Butler County claims for purposes of the statute of repose. We disagree.
{¶ 26} Frysinger does state:
Where R.C. 2305.19 applies, the date for filing the new action relates back to the filing date for the preceding action for limitations purposes. Lewis v. Connor (1985), 21 Ohio St.3d 1, 4, 21 OBR 266, 268, 487 N.E.2d 285, 287; Reese v. Ohio State Univ. Hosp. (1983), 6 Ohio St.3d 162, 163-164, 6 OBR 221, 222-223, 451 N.E.2d 1196, 1198.
{¶ 27} 32 Ohio St.3d at 42, 512 N.E.2d 337. Neither Lewis nor Reese, however, actually describes a claim refiled pursuant to the saving statue as relating back to the date of the prior action. Moreover, our statement in Frysinger about a refiled action relating back was dicta. See Vogel v. Northeast Ohio Media Group, L.L.C., 9th Dist. Medina No. 19CA0003-M, 2020-Ohio-854, ¶ 13. The questions presented in Frysinger were when a cause of action for medical malpractice accrues and whether a voluntary dismissal pursuant to
{¶ 28} As the Ninth District recognized in Vogel, our more recent characterization of the saving statute in Internatl. Periodical Distribs., 95 Ohio St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, at ¶ 7, is more consistent with the text of
{¶ 29} In light of the purpose of a statute of repose—to create a bar on a defendant’s temporal liability—exceptions to a statute of repose require “a particular indication that the legislature did not intend the statute to provide complete repose but instead anticipated the extension of the statutory period under certain circumstances,” as when the statute of repose itself contains an express exception. California Pub. Emps.’ Retirement Sys., ___ U.S. at ____, 137 S.Ct. at 2050, 198 L.Ed.2d 584. The General Assembly did incorporate into
{¶ 30} The absence of an express exception in
{¶ 31} Not only does the General Assembly’s incorporation of the saving statute in the product-liability statute,
{¶ 32} Nearly 35 years ago, the Tenth District Court of Appeals held that a prior version of the medical statute of repose did not preclude application of the saving statute to permit the refiling of a medical claim beyond the repose period. Wade v. Reynolds, 34 Ohio App.3d 61, 61-62, 517 N.E.2d 227 (10th Dist.1986). But the version of the statute of repose at issue in Wade differed appreciably from the current statute. The prior version of the statute of repose applied to “ ‘all persons regardless of legal disability and notwithstanding section 2305.16 of the Revised Code.’ ” Id. at 61, quoting former R.C. 2305.11(B), 1976 Am.H.B. No. 1426, 136 Ohio Laws, Part II, 3840, 3841. That is,
{¶ 33} While appellees cite Wade in support of their position that the saving statute operates as an exception to the statute of repose, the Tenth District’s reasoning in Wade actually supports appellants’ contrary position.
{¶ 34} The Federal District Court for the Southern District of Ohio—in another case against Dr. Durrani—recently held, contrary to our holding today, that Ohio’s medical statute of repose does not bar medical claims that have been refiled, pursuant to
{¶ 35} The Illinois saving statute differs from the Ohio saving statute; it provided: “ ‘where the time for commencing an action is limited, if * * * the action is voluntarily dismissed * * *, the plaintiff * * * may commence a new action within one year or within the remaining period of limitation, whichever is greater.’ ” Hinkle at 300, quoting 735 Ill.Stat.Ann. 5/13-217. The Seventh Circuit stated, “The savings statute expressly applies to cases ‘where the time for commencing an action is limited,’ which on its face includes both statutes of limitations and statutes of repose.” Id. at 302, quoting 735 Ill.Stat.Ann. 5/13-217. Likewise, the statute’s use of the phrase “within the remaining period of limitation” reasonably encompasses not only the statute of limitations, but also the statute of repose. Id.
{¶ 36} The Seventh Circuit ultimately turned to a comparison of the legislative policy purposes behind the statute of repose and the saving statue. It noted that the legislature had enacted the medical statute of repose in response to a perceived medical-malpractice-insurance crisis and to mitigate the effects of the discovery rule. Id. at 301. It stated that the statute of repose embodied two related purposes: “to prevent indefinite potential liability for a particular act or omission [and] to afford defendants (and insurance companies) greater certainty in predicting potential liability.” Id. at 302. It concluded that application of the saving statute, which provided only a year in which to refile a dismissed claim, did not create “indefinite potential liability” and that, except in the rare case in which the defendant was unaware of the first action, application of the saving statute would not affect defendants’ and insurers’ certainty in predicting potential liability. Id. at 303. Thus, the court determined that application of the saving statute would not frustrate the purposes of the statute of repose.
{¶ 37} In light of the absence of an express incorporation of the Ohio saving statute as an exception in the medical statute of repose, the General Assembly’s express incorporation of the saving statute as an exception to another statute of repose in
Conclusion
{¶ 38}
{¶ 39} For these reasons, we reverse the judgment of the First District Court of Appeals. Because appellees commenced their actions in Hamilton County more than four years after the alleged conduct that formed the basis of their claims, the statute of repose barred appellees’ refiled actions. Accordingly, the trial court appropriately granted appellants’ motion for judgment on the pleadings.
Judgment reversed.
O’CONNOR, C.J., and KENNEDY, GWIN, and KLATT, JJ., concur.
STEWART, J., dissents, with an opinion joined by DONNELLY, J.
W. SCOTT GWIN, J., of the Fifth District Court of Appeals, sitting for FISCHER, J.
WILLIAM A. KLATT, J., of the Tenth District Court of Appeals, sitting for DEWINE, J.
STEWART, J., dissenting.
{¶ 40} I disagree with most of the majority opinion’s analysis and its conclusion that
Problems with the majority opinion’s textual analysis
{¶ 41} According to the majority opinion, the only exceptions to the four-year period of repose on medical-malpractice claims are those exceptions expressly referred to in
{¶ 43} The second problem with the majority opinion’s textual analysis is that it wrongly assumes that if found to apply to this case or others like it,
{¶ 44} For these reasons, and for others I discuss below, it seems clear that the legislature does not view
{¶ 45} We explained how the saving statute worked over 30 years ago in Frysinger v. Leech: “Where
the test of time and offered an easy-to-understand and logical explanation of how a second action could ever be considered “timely” when filed outside the express timing limitations for commencement of an action. Nevertheless, the majority opinion now repudiates our relation-back analysis as nothing more than ill-considered dicta. Majority opinion at ¶ 27.
{¶ 46} Why the majority does this is clear. If it cannot distinguish away Frysinger’s analysis, then the present case must be decided in favor of upholding the recommenced actions as properly commenced within the four-year statute of repose. And so what the majority does is masticate Frysinger into a paste, spitting it out in unrecognizable, and safely ignorable, form.
{¶ 47} For instance, the majority opinion points out that
curious that the majority—which otherwise focuses so closely on the language of
In a similar vein, the relation back-analysis is not at odds with our more recent characterization of saving statutes in Internatl. Periodical Distribs. v. Bizmart, Inc., 95 Ohio St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, ¶ 7. To say as we did in that decision that “savings statutes operate to give a plaintiff a limited period of time in which to refile a dismissed claim that would otherwise be time-barred,” id. at ¶ 7, in no way nullifies the relation-back concept. In fact, one could easily tag Frysinger’s analysis onto the end of our more recent analysis in Internatl. Periodical and end up with a single, cohesive interpretative statement that is supported by both decisions. Case in point: “saving statutes operate to give a plaintiff a limited period of time in which to refile a dismissed claim that would otherwise be time-barred by permitting the refiled complaint to relate back to the date the complaint was filed in the prior action.”
The majority’s reliance on Internatl. Periodical’s interpretation of
The majority opinion also distinguishes Frysinger’s analysis as being inconsistent with this court’s statement in Antoon v. Cleveland Clinic, 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 24, that an action that has been dismissed without prejudice is deemed to never have existed. Majority opinion at ¶ 28. [Majority at p. 15:8-10] The implication is, presumably, that a recommenced action cannot relate back to the date of a previously commenced action that has been dismissed, because the previous action does not exist and never did exist. This is just wrong. What was stated in DeVille Photography, Inc. v. Bowers—the case on which this court relied for its statement in Antoon—is that “[a] dismissal without prejudice leaves the parties as if no action had been brought at all.” 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959). Importantly, the question before the court in Deville was whether an interlocutory judgment, entered by a court prior to the plaintiff’s voluntary dismissal of the action, still had effect after the dismissal. See id. at 269. We answered that question in the negative on several grounds, one being that once a case is voluntarily dismissed, the parties go back to the position they were in before the action was commenced. See id. at 272-273. Nothing in Deville suggests that as a metaphysical matter a dismissed action completely ceases to exist altogether. Indeed, court records would confirm its existence. What the majority seems not to realize is that by going down a path that upholds the incorrect notion that a voluntarily dismissed action “never existed,” the saving statute fails to have any meaning or application. The reason for this is that the saving statute relies on the existence of a previously filed action. See
Lastly, the fact that
what, if any, effect our statements in Frysinger have had on the legislature’s wording of either statute. This consideration is at
{¶ 48} Since our decision in Frysinger, the legislature has shown no sign of moving to supersede our judicial interpretation of
legislative history shows that the tolling exception based on minority or disability
Although the 2004 amendments to the statute removed the phrase “and the time limited for the commencement of such action at the date of reversal or failure has expired,” Am.Sub.H.B. No. 161, 150 Ohio Laws, Part II, 3423, this should not be taken to mean that the statute no longer applies beyond the expiration of the statute of repose. What this means is that now a plaintiff may take advantage of the saving statute’s recommencement timeframe even though the time limited for commencement might not have expired. Before the 2004 amendments, this was not the case. Then, for
Looking at the current and former versions of
statute. That is not how the saving statute functions. Instead, as noted in our analysis in Frysinger,
{¶ 49} That the saving statute acts as a complement to the statute of repose and not an exception to it is also in line with what we know about the purposes of each statute.
{¶ 50} On the other hand, the purpose of the statute of repose is to limit indefinite potential liability and give defendants greater certainty and predictability by placing an outer time limit on the commencement of a lawsuit. It cannot seriously be said that giving a plaintiff an additional year to recommence an action that has already been timely commenced “create[s] the type of indefinite potential liability that [the statute of repose] was designed to abolish.” Hinkle v. Henderson, 85 F.3d 298, 303 (7th Cir.1996). Nor does it affect the certainty and predictability that the statute of repose affords. See id; see also See v. Hartley, 257 Kan. 813, 823, 896 P.2d 1049 (1995); Cronin v. Howe, 906 S.W.2d 910, 914 (Tenn.1995); Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind.1988).
{¶ 51} I agree with the majority opinion that it is not our job to establish legislative policies or to second guess the General Assembly’s policy choices. Majority opinion at ¶ 37. But that is exactly what the majority is doing here when it goes out of its way to manufacture reasons to find that two otherwise perfectly compatible statues are operating at odds with each other. I would affirm the judgment of the First District Court of Appeals.
DONNELLY, J., concurs in the foregoing opinion.
Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube; Robert A. Winter Jr.; The Deters Law Firm Co. II, P.A., Benjamin M. Maraan II, and James F. Maus; and Law Offices of Glenn D. Feagan, P.S.C., and Glenn D. Feagan, for appellees.
Taft Stettinius & Hollister, L.L.P., Aaron M. Herzig, Russell S. Sayre, and Philip D. Williamson, for appellants.
Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube, urging affirmance for amicus curiae Ohio Association for Justice.
Zagrans Law Firm, L.L.C., and Eric H. Zagrans, urging affirmance for amicus curiae Cleveland Academy of Trial Attorneys.
Squire Patton Boggs (US), L.L.P., Benjamin Beaton, Lauren S. Kuley, Heather L. Stutz, and Christopher Haas, urging reversal for amici curiae Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association.
Sean McGlone, urging reversal for amicus curiae Ohio Hospital Association.
Tucker Ellis L.L.P., Susan M. Audey, Raymond Krncevic, and Elisabeth C. Arko, urging reversal for amicus curiae Academy of Medicine of Cleveland & Northern Ohio.
Notes
1. I am not convinced, though the majority seems to be, majority opinion at ¶ 30, that the legislature’s inclusion of
To begin, the inclusion of
Except as otherwise provided in divisions (C)(2), (3), (4), (5), (6), and (7) of this section or in section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser * * *.
(Emphasis added.)
It is worth noting too that 2004 Am.Sub.S.B. No. 80, as originally introduced and voted on by the Senate, did not include any reference to
[https://perma.cc/PT5H-RB86]; Synopsis of House Committee Amendments, https://www.lsc.ohio.gov/documents/gaDocuments/synopsis125/s0080-125.pdf (accessed Dec. 18, 2020) [https://perma.cc/5N3D-B742]. The Senate voted on the amended bill—which, by the way, contained extensive tort-reform legislation—on December 9, 2004, during a lame-duck, special session. See Ohio Senate Session held on December 18, 2004, consideration of Am.Sub.S.B. No. 80 at 00:12:59-00:35:10 and 00:51:28-00:53:20, https://ohiochannel.org/video/ohio-senate-session-part-7 (accessed Dec. 18, 2020) [https://perma.cc/B3UM-3QFH]. During the Senate floor debates, one senator expressed concern that he had only just received a copy of the amended bill a few hours earlier and was expected to vote on it without reading it. See id.
Given all this, and considering too how a
2. The First, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth District Courts of Appeals have explicitly relied on Frysinger’s relation-back language when resolving questions related to
3. None of these arguments is sound. To begin, it is not at all clear that the relation-back analysis in Frysinger is dicta. Although the specific issue before the court was whether a voluntary dismissal under
The court’s relation-back analysis in Frysinger also is not at odds with the two cases used to support it, Lewis v. Connor, 21 Ohio St.3d 1, 4, 487 N.E.2d 285 (1985), and Reese v. Ohio State Univ. Hosp., 6 Ohio St.3d 162, 163, 451 N.E.2d 1196 (1983). In fact, the relation-back concept dovetails nicely with the description of the statute in both decisions. It is also worth noting that these three decisions, which were decided within only a few years of each other, were decided by a court composed of essentially the same justices. So perhaps we should take heed when in Frysinger, those justices expounded on what was meant by their earlier analyses in Lewis and Reese.
4. The version of the saving statute in effect when we decided Frysinger stated:
In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff * * * may commence a new action within one year after such date.
Former R.C. 2305.19(A), G.C. 11233. Notably, the statutory language included the phrase “time limited for the commencement.” This language is nearly identical to language that the majority agrees “reasonably encompasses not only the statute of limitations, but also the statute of repose.” Majority opinion at ¶ 35.
In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of the reversal of the judgment or the plaintiff’s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.